Citation Nr: 0106873
Decision Date: 03/08/01 Archive Date: 03/16/01
DOCKET NO. 98-18 010 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased evaluation for the service-
connected residuals of a fracture of the left clavicle with
malunion, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. A. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1966
to September 1968.
This appeal arises from a March 1998 rating decision of the
Columbia, South Carolina, regional office (RO) which denied
an increased evaluation for a service-connected fracture of
the left clavicle with malunion. The notice of disagreement
was received in October 1998. The statement of the case was
issued in October 1998. The veteran's substantive appeal was
received in November 1998.
On November 15, 2000, a hearing was held at the RO before
undersigned, who is a member of the Board of Veterans'
Appeals (Board) rendering the final determination in this
claim and who was designated by the Chairman of the Board to
conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West
Supp. 2000).
FINDING OF FACT
The residuals of the veteran's left shoulder fracture include
degenerative changes, malunion of the left clavicle, and pain
on repetitive motion and lifting; however, there is no
evidence of significant loss of range of motion, recurrent
dislocation, or any other significant clinical findings.
CONCLUSION OF LAW
A rating in excess of 10 percent for the residuals of a
fracture of the left clavicle with malunion is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2000); Pub. L.
No. 106-475, § 4, 114 Stat. 2096, ____ (2000) (to be codified
as amended at 38 U.S.C.A. § 5107); 38 C.F.R. § 3.321 and Part
4, including §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.71a, Part
4, to include §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71,
Diagnostic Codes 5201, 5202, 5203 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
Service connection for a healed fracture of the left clavicle
with malunion was granted in October 1968. A 10 percent
disability evaluation was assigned.
In February 1998, the veteran filed a claim for an increased
evaluation of his left shoulder disability. He stated he had
developed arthritis in that joint. He reported receiving
treatment for his shoulder problem through the Columbia VA
Medical Center (VAMC).
Medical records from the Columbia VAMC dated in February 1998
show that the veteran was seen for complaints of bilateral
shoulder pain. He said he experienced stiffness and aches in
both shoulder joints. He stated he had difficulty picking up
objects. He indicated that he not tried non-steroidal anti-
inflammatory medications or Tylenol. The veteran had a full
range of motion of both shoulders. There was no tenderness
on palpation of the shoulders. X-rays of the shoulders
showed decreased joint space at both shoulders. The
diagnosis was probable arthritis in right and left shoulder.
It was noted that this visit had been the veteran's first
visit since September 1993.
By a rating action dated in March 1998, the 10 percent
disability rating assigned for the residuals of a fractured
left clavicle with malunion was continued. The RO stated a
higher evaluation was not warranted unless there was evidence
of dislocation of the clavicle or scapula or non-union of the
clavicle or scapula with loose movement. The findings of the
February 1998 treatment report from the Columbia VAMC were
referenced.
The veteran was afforded a VA orthopedic examination in
November 1998. He discussed the nature of his in-service
injury. Specifically, he stated he sustained multiple
gunshot wounds, and that one such wound had deflected off his
left clavicle. He said this caused a hairline fracture of
the clavicle. He reported that he currently worked in a job
that required him to do overhead work with his hands over his
head. He stated he had aching in his left shoulder that had
worsened over the past few years. He denied weakness in his
left shoulder. He denied loss of work due to the ache in his
shoulder. The veteran reported that he was able to use his
shoulders with a full range of motion. However, he said he
did experience aching in his shoulders.
On physical examination, the veteran's shoulder musculature
appeared symmetrical bilaterally. There was some slight
deltoid wasting, but this also appeared to be symmetrical.
He was tender to palpation at the entrance wound over the
mid-shaft of his left clavicle. He was also tender to deep
palpation at that point. He was mildly tender to palpation
over the acromioclavicular joint. Range of motion of the
left shoulder showed that the veteran was able to forward
flex to 180 degrees, abduct to 110 degrees, internally rotate
to L1 on the back of his spine, and externally rotate to
touch the back of his head. While he had some aching with
range of motion, the examiner described the range of motion
of the veteran's left shoulder as full. The veteran had a
positive Hawkin's impingement sign. He stated that he felt
bone on bone in his shoulder. He had no rotator cuff
weakness. He had 5/5 strength of the supraspinatus,
infraspinatus, subscapularis, and deltoid muscles. The
assessment was left shoulder pain. The examiner indicated
that the impingement type pain experienced by the veteran was
not related to his service-connected disability.
X-rays at the time of the examination showed no definite
acute fracture or dislocation. There were slight
degenerative changes greater in the region of the left
acromioclavicular joint with slight spurring and minimal
narrowing. Slight inferior bony impingement could not be
excluded. Minimal spurring and irregularity was noted in the
region of the greater tuberosity with slight osteopenia.
There was a suggestion of slight periosteal thickening or
reaction involving the upper left humerus, which appeared to
be benign.
The veteran was afforded a personal hearing before the RO in
May 1999. He said he experienced pain on movement of his
left shoulder. He stated his shoulder disorder prevented him
from lifting anything that was "real heavy". He indicated
that he retained a full range of motion of the shoulder, but
that he experienced pain with range of motion. The veteran
denied experiencing increased pain with certain activities.
He reported receiving treatment through the Columbia VAMC.
He stated he took pain medication three to four times a day.
He denied receiving any physical therapy.
Outpatient records from the Columbia VAMC dated from February
1998 to January 1999 were associated with the claims folder.
Those records reflect that the veteran received evaluations
and treatment for, but not limited to, diabetes mellitus,
hypertension, and bilateral shoulder pain. Specifically, a
March 1998 treatment note indicated that the veteran suffered
from osteoarthritis of both shoulders, and that his use of
ibuprofen failed to provide complete relief from the pain.
There were no other findings made with regard to the left
shoulder.
Entitlement to an increased evaluation for the service-
connected residuals of a fractured left clavicle with
malunion was denied in June 1999. The RO determined that the
veteran had failed to submit evidence to support a higher
disability rating. A supplemental statement of the case was
mailed to the veteran that same month.
In November 2000, the veteran was afforded a personal hearing
before the undersigned. He complained of chronic left
shoulder pain. He said his shoulder popped all the time. He
testified that he did not experience dislocations of his
shoulder. However, he said he was unable to lift heavy
objects without having shoulder pain. He demonstrated that
he was capable of bringing his left arm above shoulder level.
In this regard, the veteran indicated that he experienced a
popping and pulling in the shoulder. He also endorsed
decreased grip strength in his left hand. He said he tried
to avoid using his left shoulder/arm whenever he had to lift
an object. He asserted that part of his decision to retire
early was because he experienced pain in his left shoulder
when he worked. He said his job had involved working with
his hands over his head. He stated he had retired in
November 1998, after working that particular job for about 12
years. The veteran denied missing any time from work due to
his left shoulder disability. He stated he received all his
treatment for shoulder pain through the Columbia VAMC. He
testified that he was right-handed.
II. Analysis
The Board is satisfied that all relevant facts have been
properly developed. An examination for VA purposes has been
performed. The Board finds the VA examination was adequate
concerning the issue at hand, and that there is no
indication, nor has it been contended, that there are
relevant post-service medical records available that would
support the veteran's claim, and are not of record.
Therefore, no further assistance to the veteran is required
in order to comply with the duty to assist mandated by 38
U.S.C.A. § 5103 (West 1991); 38 U.S.C.A. §§ 5103, 5103A
(enacted in Public Law No. 106-475, the Veterans Claims
Assistance Act of 2000 (Nov. 9, 2000; 114 Stat. 2096)).
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work. These requirements for
evaluation of the complete medical history of the claimant's
condition operate to protect claimants against adverse
decisions based on a single, incomplete or inaccurate report,
and to enable VA to make a more precise evaluation of the
level of the disability and of any changes in the condition.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA
has a duty to acknowledge and consider all regulations which
are potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion.
38 C.F.R. § 4.10 provides that the basis of disability
evaluations is the ability of the body as a whole, or of the
psyche, or of a system or organ of the body to function
under the ordinary conditions of daily life, including
employment. Whatever system is affected, evaluations are
based upon lack of usefulness of these parts or systems,
especially in self-support. The medical examiner must
therefore furnish, in addition to the etiological,
anatomical, pathological, laboratory and prognostic data
required for ordinary medical classification, a full
description of the effects of disability upon the person's
ordinary activity.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40 (2000).
38 C.F.R. § 4.45 provides that factors of disability of the
joints reside in the reductions of their normal excursion of
movements in different planes. Consideration is to be given
to the following conditions: (a) less movement than normal;
(b) more movement than normal; (c) weakened movement; (d)
excess fatigability; (e) incoordination and impaired ability
to execute skilled movements smoothly; and (f) pain on
movement, swelling, deformity or atrophy of disuse,
instability of station, disturbance of locomotion, and
interference with sitting, standing or weightbearing.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); Pub. L. No. 106-475, § 4,
114 Stat. 2096, 2098-99 (2000) (to be codified as amended at
38 U.S.C. § 5107); 38 C.F.R. §§ 3.102, 4.3.
The veteran's service-connected left shoulder disorder is
currently evaluated as 10 percent disabling under Diagnostic
Code (DC) 5203. Under DC 5203, the rating of a shoulder
disorder is based on impairment of the function of the
contiguous joint. When there is impairment of the clavicle
or scapula with malunion, a 10 percent rating is assigned
whether the major or minor extremity is involved. When there
is nonunion, without loose movement, a 10 percent rating is
also warranted. A 20 percent rating is warranted when there
is loose movement of a minor extremity. Alternatively, under
DC 5201, when there is limitation of arm motion at shoulder
level, a 20 percent rating is assigned for either major or
minor shoulder/arm. Under DC 5202, a 20 percent rating may
be assigned when there is evidence of malunion of the humerus
with marked deformity.
Here, the veteran's left shoulder disability is manifested by
degenerative joint disease that has been confirmed by X-ray.
He complains of aching in the joint, pain with repetitive
use, and an inability to lift heavy objects without
experiencing pain. Nevertheless, range of motion studies
have repeatedly shown that he has a normal range of motion of
the left shoulder, and that the veteran had only some aching
with motion. A 20 percent rating for limitation of arm motion
would therefore be inappropriate.
The Board has taken into account pain as required under 38
C.F.R. §§ 4.40 and 4.45, and the holding in DeLuca v. Brown,
8 Vet. App. 202, 205 (1995). In DeLuca v. Brown, the Court
held that in evaluating a service-connected disability
involving a joint, the Board erred in not adequately
considering functional loss due to pain under 38 C.F.R. §
4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. The Court determined that Diagnostic Codes
pertaining to range of motion do not subsume 38 C.F.R. § 4.40
and § 4.45, and that the rule against pyramiding set forth in
38 C.F.R. § 4.14 does not forbid consideration of a higher
rating based on a greater limitation of motion due to pain on
use, including use during flare-ups.
Here, as was noted above, the veteran claims he has pain and
discomfort in his left shoulder with repetitive activities or
lifting heavy objects. However, the symptoms attributable to
the residuals of the of the veteran's fractured left clavicle
simply are not productive of such impairment as to warrant a
higher evaluation, which requires limitation of the left arm
to shoulder level. Indeed, the current 10 percent evaluation
is based, in substantial part, on the veteran's complaints of
pain on use. See Spurgeon v. Brown, 10 Vet. App. 194, 196
(1997). There was also no objective indication of any degree
of additional range of motion loss due to pain, weakened
movement, or incoordination, nor was there any suggestion of
pain that significantly limited functional ability during
flare-ups. See DeLuca v. Brown. In fact, the veteran denied
any weakness of the shoulder at his November 1998
examination. He also reported on numerous occasions that his
left shoulder disorder did not prevent him from working in a
job that required him to work with his arms extended over his
head.
Further, at his hearing before the undersigned, the veteran
denied any recurrent dislocations of his left shoulder. The
report of the November 1998 x-ray of the left shoulder also
indicated that there was no evidence of recent dislocation.
The record also lacks any findings suggestive of instability
of the left shoulder, nonunion of the clavicle or scapula
with loose movement, or malunion of the humerus with moderate
deformity. Consequently, a higher rating under Diagnostic
Code 5202 or 5203 is not warranted.
The preponderance of the evidence is against a rating in
excess of 10 percent for the residuals of a fractured left
clavicle with malunion. The Board also finds that the
evidence of record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards." 38
C.F.R. § 3.321(b)(1) (2000). In this regard, there is no
assertion or showing by the veteran that the service-
connected left shoulder disability resulted in marked
interference with employment or necessitated frequent periods
of hospitalization.
ORDER
Entitlement to an increased evaluation for the service-
connected residuals of a fracture of the left clavicle with
malunion is denied.
D. C. Spickler
Member, Board of Veterans' Appeals